Moreno (Daniel) v. State ( 2015 )

 aggregate percentage of different minority groups in the community, he
failed to allege that a distinct group had been underrepresented. As he
did not allege sufficient facts to warrant further inquiry, the district court
did not err in denying Moreno's claim without conducting an evidentiary
hearing.
Second, Moreno argues that the district court erred in denying
his motion to suppress his statements to police as he invoked his right to
remain silent and his right to counsel. We disagree. The record does not
indicate that Moreno invoked his right to counsel or to remain silent
regarding the instant charges. Moreno was given Miranda' warnings
prior to questioning. He inquired about his representation by counsel as it
related to the other charges for which he was represented, but this mere
inquiry did not amount to an unequivocal invocation of his right to counsel
on the instant charges. See •Berghuis v. Thompkins, 560 U.S. 370, 381
(2010) (providing that an accused must invoke his right to remain silent
unambiguously); Kaczmarek v. State, 120 Nev. 314, 329, 91 P.3d 16, 27
(2004) (requiring unambiguous invocation of right to counsel). Moreno
continued with the interview and did not ask for counsel or express a
desire not to answer questions at any time thereafter. See Berghuis, 560
U.S. at 384 ("Where the prosecution shows that a Miranda warning was
given and that it was understood by the accused, an accused's uncoerced
statement establishes an implied waiver of the right to remain silent.");
Mendoza v. State, 122 Nev. 267, 276, 130 P.3d 176, 182 (2006) (stating
that written or oral statement of waiver of right to remain silent
unnecessary but waiver of right may be inferred from actions and words of
'Miranda v. Arizona, 384 U.S. 436 (1966).
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accused). Given this context, the district court did not err in denying the
motion to suppress.
Third, Moreno contends that the district court erred in
permitting the State to shift the burden of proof to Moreno to provide an
alibi during questioning by Detective Nelson. We conclude that the
district court did not err in concluding that no prosecutorial misconduct
occurred. The State's questioning did not suggest that Moreno had to
produce an alibi or testify on his behalf. See Evans v. State, 117 Nev. 609,
631, 28 P.3d 498, 513 (2001) ("Generally, prosecutorial comment on the
failure of the defense to present witnesses or evidence impermissibly shifts
the burden of proof."). Instead, it sought to establish that Moreno had an
opportunity to commit the charged crimes. Moreover, the jury was
instructed that the State bore the burden of proving the facts supporting
the charges beyond a reasonable doubt and that Moreno did not have to
prove his innocence or call witnesses on his behalf. Therefore, the district
court did not abuse its discretion in overruling the objection.
Fourth, Moreno argues that the State introduced evidence
that his DNA was found on a pistol that was found in an uncharged
robbery in violation of a district court order denying the State's motion to
admit evidence of other crimes. We discern no abuse of discretion. See
Mclellan v. State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008). Although
the district court denied the State's motion to admit evidence of the
uncharged robbery during which the pistol was dropped, the district court
ruled that evidence that Moreno's DNA was found on the pistol was
admissible. The fact that Moreno possessed a pistol less than two weeks
after the charged armed robberies is relevant to whether he committed the
armed robberies. See NRS 48.015 (relevant evidence tends "to make the
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existence of any fact that is of consequenceS to the determination of the
action more or less probable").
Having considered Moreno's contentions and concluding that
they lack merit, we
ORDER the judgment of conviction AFFIRMED.
J.
Gibbons
J.
cc: Hon. Valerie Adair, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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